An Introductory Note:
On the Mutual Permeability of Myth and Law

What these statutes represent are an indication
of the societal borders of the United States from early to late 19th century;
they are the product of what can be in
a sense considered our primary institutionalizing institution--which is to
say, Congress. Coming from the national legislature they then come as a
primary text in the crucial dialogue for the United States then (if not now):
the dialogue of "civilization." Virgin Land may deal with "symbol
and myth" as informative forces of Western "meaning," but popular
understanding is nonetheless circumscribed by the equally "popular" force
of elected government. Of course, as
Smith points out, there is a certain interpenetration, or mutual permeation,
so that traditional ideas of agrarian society can continue to play a role in
the formation of law, by animating the struggles in Congress around the
bill. Such is the case with the development and proposed reform of
the Homestead Act.

One sees the idea of the "agrarian utopia" develop through a few strains of
related perspectives, all of which animated the "most important issue" (the
Homestead Bill) for the Northwest and subsequently, for the Republican
platform of 1860. As Smith writes, "everyone knew that the party could
not succeed unless it carried the formerly Democratic Northwest," and the
way to go about this was to stand for legislation that would fulfill the
ideological and mythic expectations of the voters, and promise to "enact by
statute the fee-simple empire, the agrarian utopia of hardy and virtuous
yeomen which had haunted the imaginations of writers about the West
since the time of Crevecoeur" (pp. 165, 170). It is then interesting to note
that the wording of the law itself, is similarly "haunted" by notions of a type
that would presumably flourish by virtue of the act. That "any person who
is the head of a family" is the first phrase of the statute, gives it an influence
which sets the tone (if such a term could be attributed to a legislative act)
for what follows, and which emphasizes the very title "Homestead" as a
prescriptive force in itself, transferring the assumptions of an idealized
mode of subsistence farming to the process which, nominally, sets out only
to define the ownership of land. The vagueness of the term "family"
likewise suggests the interpretative free-play and practical inadequacy that
would accompany a bill whose "rules and regulations" depended upon the
General Land Office--an agency which, as
Smith points out, was "notoriously corrupt and inefficient" (p. 196). On
the one hand, politicians and anyone else who hoped to gain from such
rhetoric might then continue to point to "family" as the focus of all that was
ideologically good and right about the law; on the other, the
General Land Office could always fall back upon a phrase which has at
times haunted Constitutional law, and justify its actions on the basis of
what is "necessary and proper" (see Sec. 6). Given the general thrust of
agrarian mythos behind the formation of the law, one may well see how this
in turn could give rise to language that must be general enough to evoke
something of the spirit of the idea. But then comes the problem which
mirrors this effect, and which confronts any legislative act--that of agency,
of how to allow for the bureaucratic means in effecting an ideological end.
The Homestead Act might state specifics, such as the land grant size at
"one hundred and sixty acres" or the pre-
emption purchase claim at "one dollar and twenty-five cents per acre,"
but the myth that is translated into law must then be translated into
practice. And here the law finds an existence beyond its written form,
where what it is, is given dimension by how it is enforced and what
it effects. What this suggests is a kind of tertiary relation of myth, law, and
practical function, and it points to the paradoxical way in which myth
stands in what Smith calls "an increasing irrelevance to the facts," even as it
is bound through the legislation which first enabled the "facts." It is
through this process that the "speculators and monopolists" can form the
"comfortable working arrangements" with the General Land Office, and the
arrangement in turn can become shrouded within the "central myth" of the
West, perpetuated by the "faith in progress, in the mission of America, in
manifest destiny" (pp. 198, 200). To change the Homestead Act would be
to deny one's faith in the societal ideal of agrarian "family" values that the
act represents; at the same time, to continue to support the act would be to
help destroy the potential "fact" of its mythic underpinnings.

Much of the point here is to provide a partial anchor for Smith's "symbol
and myth," to enable the examination of these laws in their precise
wording, and to allow the reading of Smith's text with a clear
view to how interpenetrations may have occurred. For example, the
development of the General Land Office
in 1812 may well serve as a reminder that the Leatherstocking model did
not roam completely free, that any "frontier" figure always stood as a kind
of precursive agent for a superstructure of ownership and national
appropriation that was in place almost at the outset,
consciously and purposefully developing all the time. And if the General
Land Office is to be the primary agency of the possession and distribution
of "virgin land," in one way it stands as the institution which actively
"civilizes" it. As such, it represents an order imposed upon the Native
American tribes, where an alien economic structure (it is established within
the Department of the Treasury) dictates physical space, and so, largely
determines cultural existence. This meets a kind of counterpart in a statute
from 1862, An Act to protect the Property of
Indians who have adopted the Habits of civilized Life. Given
Smith's comments on the corruption of such a civilized institution
as the General Land Office, one sees the potential irony in the clash of
myths which the presence of the act suggests--civilization v. the
"(noble?) savage."

If such a comparison of laws allows for a mutual commentary of their
underlying rhetorical or cultural assumptions, so too does the relative
simultaneity (both 1862) of the Homestead Act and the establishment of a
Department of Agriculture
illuminate each in relation to the other. At the same time it suggests the
enactment of a coherent strain of popular thought--one which helped win
the 1860 election for Lincoln and the Republican party. To read the
purpose of the
Department of Agriculture, in light of what Smith points out,
is to read further into the urge behind the Homestead Act, is to see
another attempt at an institutionalization, an attempted permanence, for the
myth of the yeoman farmer. At the same time, just as the Homestead Act
becomes a useful tool for speculators and railroad interests, one might
reason that a governmental agency pursuing "useful information"
concerning agriculture would quite likely end up
pursuing the interests of an increasingly mechanized and wide-scale system
of farming--either specifically pursuing the aims of a stronger lobbying
group than the single yeoman farmer could match, or simply following the
inevitably technological direction toward which new information
tends.

These links exist not to prove such points, but to allow the connections
to be more easily made. The attempt is to allow an extended
scope, but not to force it. Nor obviously
is this limited set of links meant to be exhaustive. What it does offer is a
kind of constellation around the key issue of the text (and hypertext): land.
The existence of "virgin" land is what allows the myth, the dynamic of
meaning through which emerges the developing "civilization"--through
which in turn emerges the understanding of what and who the "American"
people are. If the "frontier" is a generative force because of its openness,
national laws exist both as what the "free frontier individual" type must
have in order to stand out at all--as what determines his or her meaning as
self-reliant "outsider"--and also as a reminder of the limits of
frontier. If the frontier myth suggests the development of American
identity, laws stand in their stead as an equally important part of the
progression. Between them is the cultural and societal movement that
Smith suggests, from the pioneering to the establishing of infrastructure--of
laws, public offices and services, routes of transportation (the second
linked pre-emption act
is a good example of this latter progression).

Again, the idea here is not so much to answer specific questions as to
let them develop through specific and comparable points of reference.